Dan Bodansky Letter from Copenhagen

Dan Bodansky Letter from Copenhagen

[As noted earlier, Professor Dan Bodansky is continuing his dispatches on the climate change talks.  He is in Copenhagen this week and next, and sends us this initial letter.  OJ will be providing additional commentary on the climate change talks — from the conference, and from other academic commentators — over the next week. Dan’s letter is being cross-posted at the Smith School of Enterprise and Environment at Oxford.]

Under grey skies, the Copenhagen Climate Conference began this week in a sprawling complex at the edge of the city. Whether anything will actually happen here to address climate change remains an open question. But the conference is definitely a happening. Reportedly, more than 40,000 people have registered and the conference has dramatically more energy than the lead-up meetings (although that is an admittedly low standard of comparison). Indeed, my sense is that it’s on a bigger scale than any environmental meeting since Rio. And the energy will only build next week, with the arrival of more than 100 heads of state.

In theory, the outlook here should look bright, since the core substantive elements of the “deal” are already on the table. The major emitters have put forward their provisional national emission targets: 20-30% reductions from 1990 levels for the EU, in the range of 17% reductions from 2005 levels for the US, a 40-45% improvement in carbon intensity for China, and a 20-25 % intensity target for India. Although these numbers fall short of putting the world on a pathway towards the goal of limiting climate change to 2 degrees (indeed, there is disagreement whether the Chinese number is any improvement on BAU), I think few realistically expect them to be tightened during the course of the conference (although the EU has criticized both the US and EU numbers as too weak, so I may easily be proved wrong). Similarly, the figure of $10 billion annually in near-term (“fast start”) financial assistance, which the US and EU have endorsed, may not meet the financial needs of developing countries, but I don’t think it will be the subject of further negotiations.

With these substantive elements in place, one might expect a deal to be easy, but the reality is far different. Not only do the various negotiating texts remain a mess, there is still no political agreement on the “architectural” aspects of the regime, including the legal form of the ultimate outcome. The divergence of views is reflected in the two texts that are informally circulating at the meeting: a text that the Danish presidency put forward last month at a pre-COP ministerial meeting, which has drawn significant fire from developing countries; and the BASIC text developed by Brazil, South Africa, India and China (the so-called BASIC group). And the opening days of the session revealed the growing rifts within the G-77 (the developing country negotiating group) between those who favor a weaker and stronger outcome.

The following is a brief summary of the key issues in the negotiations:

Legal form

Although most now agree that Copenhagen will produce only an interim political outcome, there is still significant disagreement about the legal architecture of the ultimate (post-Copenhagen) deal. Countries are now split into three groups. First, most developed countries prefer doing away with the Kyoto Protocol and replacing it with a single new legal agreement that would include both developed and developing countries. Most of the big developing countries (such as China, India and Brazil) support only an amendment to the Kyoto Protocol but no new legal agreement. And AOSIS countries prefer a continuation of the Kyoto Protocol, but supplemented by a new legal agreement that would be more comprehensive in coverage (including the US and major developing countries).

Yesterday, Tuvalu – joined by other islands states and many least-developed countries – proposed the creation of a contact group to consider proposals for a new protocol to supplement Kyoto. This was opposed by China, India, Brazil, and the OPEC states, which are not ready to concede that the Copenhagen process should result in a new legal agreement, rather than simply an amendment to the Kyoto Protocol (limited to new targets for developed countries). When consensus could not be reached to establish a new contact group, Tuvalu demanded that the conference of the parties (COP) be suspended.

The Tuvalu proposal clearly threw down the gauntlet and represented an effort by island states to signal that they intend to play a more central role in Copenhagen, after many years when they have become increasingly marginalized in the negotiations. It is more difficult, however, to understand the substantive rationale for the proposal, since the existing Ad Hoc Working Group on Long-Term Cooperation (AWG-LCA) already has within its purview the proposals made by a number of states (including the US) for a new legal agreement. The debate yesterday is also significant for revealing the growing rifts within the G-77 between the big players (China, India, Brazil, South Africa) on the one hand (joined yesterday by OPEC countries) and the island states and less-developed countries on the other. Interestingly, in a long and contentious session, the developed countries stayed largely silent, apparently content to let the G-77 countries fight among themselves.

Legal character of mitigation actions/commitments

In addition to the overarching question of legal form, there are also a variety of views about the legal character of particular elements of the ultimate agreement:

• For developed country commitments, the EU and developing countries support Kyoto-style targets – that is, economy-wide absolute emission targets, with international accounting. The US, in contrast, has proposed national emissions targets that would be subject to national accounting rules, allowing countries to define their targets in somewhat different ways in their national legislation. This position reflects the calculation by US negotiators that the US would be unable to ratify an agreement that diverged in any respect from US domestic climate legislation.

• For developing country actions (such as the intensity targets put forward by China and India), developed countries would like these to be internationalized through inclusion on a schedule that would be legally-binding. Developing countries want their targets to be purely national in nature.

Long-term vision

There is now widespread agreement among both developed and developing countries on the goal of limiting temperature change to 2 degrees. Developed countries have further agreed on a mid-term emissions target of a 50% reduction in global emissions by 2050 (the 50 by 50 goal). Although developed countries have pledged to reduce their own emissions by 80% by 2050, achieving a 50% reduction in global emissions would still require developing country emissions to peak and begin to decline prior to 2050. As a result, developing countries have refused to accept the 50 by 50 goal. The differing “long-term visions” are reflected in the Danish and BASIC texts. The Danish text accepts the 50 by 50 goal, the 80% emission reduction by developed countries, and the need for developing country emissions to peak and begin to decline prior to 2050. In contrast, the BASIC text accepts only the 2 degree goal and calls on developed countries to “undertake ambitious long-term and mid-term quantified emission reduction targets and to provide adequate and effective finance, technology transfer and capacity building support to developing countries.”

Financial assistance

Although there is general agreement on initial funding of $10 billion annually, the longer term financial arrangements remain unresolved, including the overall scale of funding as well as the institutional arrangements for finance.


Finally, MRV (monitoring, reporting and verification) and compliance remain contentious. Key issues include:

• Whether large developing countries will be subject to greenhouse gas inventory reporting and review procedures similar to those for developed countries.

• Whether nationally appropriate mitigation actions (NAMAs) by developing countries will be subject only to national verification, or whether there will be any process of international verification.

• Whether there will be only a consultative process relating to compliance or something stronger.

To oversimplify a bit, there are three general approaches to MRV/compliance issues: first, a highly differentiated regime, with strict standards for developed countries and weaker procedures for developing countries; second, a weaker review process (possibly modeled on the trade-policy review mechanism) that would apply equally to all parties; and third, a stronger compliance system (possibly including a procedure for determinations of non-compliance) that would apply equally to all countries.

All of these issues would be difficult to negotiate even in a perfect world. But, as anyone who’s been to a climate meeting knows, the climate negotiations fall well short of perfection. And, despite massive efforts by the Danish hosts, the Copenhagen meeting is an unusually chaotic process, even by the climate regime’s low standards. So while some assume that the presence of more than 100 heads of state next week will create an irresistible pressure for agreement, I think the outcome remains very much in doubt. So stay tuned….

Print Friendly, PDF & Email
Featured, General, Trade & Economic Law
Notify of
Kenneth Anderson

OJ’s Own Special Correspondent! Welcome, Dan!

Peter Haas

and the financial architecture arranements remain a mess….


Well, that the outcome remains in doubt seems sadly very true so far. With the G77 walking out and suspending any debate, it is difficult to see how any real cooperation or progress will take place. The necessity for nations to consent to any lasting, binding effects is really highlighting the rift between developing and developed. That the developing nations are upset is certainly understandable, given that every single now-developed nation had free license to burn basically whatever they wanted while industrializing. It seems to me that much more attention should be paid to the developing nations and that they are going to need to be thrown a mighty large bone if there is going to be significant cooperation and/or progress. That is also why I think it is unlikely for us to see it at all. The 50 by 50 goal seems like it could be doable, but only if developed nations take a very heavy interest in providing developing nations the means to accomplish it. Even if big players like the US and EU get on board with that though (which I am skeptical of), I can only assume BASIC would still have to be dragged into the… Read more »